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State
Oregon Regulations
CHAP 660 LAND CONSERVATION AND DEVELOPMENT DEPARTMENT DIVISION 1 PROCEDURAL RULES




The Oregon Administrative Rules contain OARs filed through July 14, 2006

LAND CONSERVATION AND DEVELOPMENT DEPARTMENT

DIVISION 1

PROCEDURAL RULES

660-001-0000

Notice of Proposed Rule

(1) Except as provided in OAR 660-001-0000(2) and ORS 183.335(7), prior to the adoption, amendment, or repeal of any permanent rule, the Department of Land Conservation and Development shall give notice of the proposed adoption, amendment, or repeal:

(a) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 21 days prior to the effective date of the rule;

(b) By mailing a copy of the notice and proposed rule(s) to persons on the Department of Land Conservation and Development's mailing list established pursuant to ORS 183.335(8) at least 28 days before the effective date of the rule;

(c) By mailing a copy of the notice to the persons, groups of persons, organizations, and associations who the department considers to be interested in such adoption;

(d) By mailing or furnishing a copy of the notice to the Associated Press and Capitol Press Room;

(e) By mailing a copy of the notice to the legislators specified in ORS 183.335(15) at least 49 days before the effective date of the rule;

(f) The department, at its discretion, may purchase a display ad in a newspaper of statewide circulation to publicize the rulemaking; and

(g) In instances where the rulemaking adopts, amends or repeals a statewide planning goal, the department shall provide additional notice as required by statute.

(2) The Commission may adopt, amend or suspend any rule by temporary rule without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable pursuant to ORS 183.335(5). At the time the Commission adopts, amends or suspends any rule under this section, it shall:

(a) Prepare and adopt the statements and rule documents required by ORS 183.335(5)(a) to (e) which includes the Commission's statement of its findings "that its failure to act promptly will result in serious prejudice to the public interest or the parties concerned and the specific reasons for its findings of prejudice;" and

(b) Include in the notice of adoption of any temporary rule a statement explaining the opportunity for judicial review of the validity of the rule as provided in ORS 183.400.

Stat. Auth.: ORS 183
Stats. Implemented: ORS 183
Hist.: LCD 7-1976, f. & ef. 6-4-76; LCDC 1-1995, f. & cert. ef. 1-4-95; LCCD 2-2004, f. & cert. ef. 5-7-04

660-001-0005

Model Rules of Procedure

(1) Pursuant to the provisions of ORS 183.341, the Land Conservation and Development Commission adopts the Attorney General's Model Rules and Uniform Rules of Procedure under the Administrative Procedure Act, effective October 3, 2001, except for OAR 137-003-0092 regarding the amount of time required to act on a stay request.

(2) Pursuant to the provisions of ORS 183.457 and OAR 137-003-0008, the Land Conservation and Development Commission authorizes parties and limited parties to contested case proceedings to be represented by an authorized representative, subject to the other requirements of ORS 183.457 and OAR 137-003-0008.

[ED. NOTE: The full text of the Attorney General's Model Rules of Procedure is available from the office of the Attorney General or the Land Conservation and Development Department.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 183.341 & ORS 183.457
Hist.: LCD 3, f. 1-9-75, ef. 2-11-75; Renumbered from 660-010-0005; LCD 5-1978, f. & ef. 3-24-78; LCD 11-1981, f. & ef. 12-15-81; LCDC 8-1983, f. & ef. 11-23-83; LCDC 2-1986, f. & ef. 4-25-86; LCDC 4-1988, f. & cert. ef. 9-29-88; LCDC 4-1990, f. & cert. ef. 8-14-90; LCDC 4-1992, f. & cert. ef. 7-30-92; LCDC 1-1995, f. & cert. ef. 1-4-95; LCDC 1-1996, f. & cert. ef. 4-3-96; LCDD 1-1999, f. & cert. ef. 1-6-99; LCDD 2-2002, f. & cert. ef. 9-23-02

660-001-0007

Request for Stay -- Agency Determination

(1) Unless otherwise agreed to by the agency and the parties, within a reasonable time following delivery or mailing to the agency of the Request for Stay, the agency shall:

(a) Conduct such further proceedings as the parties mutually agree upon; or

(b) Conduct a contested case hearing, which may be limited to hearing rebuttal testimony; or

(c) Allow the petitioner within a time certain to submit affidavits to answer any of the intervenor's evidence.

(2) Unless otherwise agreed to by the agency and the parties, within 75 days of the delivery or mailing to the agency of the Request for Stay, the agency shall:

(a) Grant the stay request in writing and impose reasonable conditions including but not limited to requirements of a bond or other undertaking and that the petitioner file all documents necessary to bring the matter to issue before the Court of Appeals within a specified reasonable period of time; or

(b) Deny the stay request in writing and explain that the petitioner failed to show irreparable injury or a colorable claim of error in the agency order; or

(c) Deny the stay request in writing and specifically state why, notwithstanding the petitioner's showing of irreparable injury and a colorable claim of error in the agency order, to grant the stay would result in substantial public harm.

(3) Nothing in OAR 137-003-0090 to 137-003-0091 prevents an agency from receiving evidence from agency staff concerning the public harm which may result if a stay request was granted. Such evidence shall be presented by affidavit.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 183, ORS 195, ORS 196, ORS 197 & OAR Ch. 137
Hist.: LCDC 2-1985, f. & ef. 3-13-85

Director's Appeal of Land Use Decisions, Expedited
Land Divisions, or Limited Land Use Decisions
660-001-0201

Definitions

The following definition, and the definitions in ORS 197.015 and 197.090(2)(e), apply to rules 660-001-0210 through 660-001-0220: "Affected local government" means the local government, as defined in ORS 197.015, that made or adopted the land use decision, expedited land division or limited land use decision at issue in the director's request under these rules.

Stat. Auth.: ORS 197.040(1)(c)
Stats. Implemented: ORS 184.633 & ORS 197.090
Hist.: LCDD 1-2000, f. & cert. ef. 1-24-00

660-001-0210

Timing of Director's Request

(1) If a meeting of the commission is scheduled to occur six or fewer days before the close of the applicable appeal period, or the period for intervention in an appeal, the director shall seek commission approval before appealing, or intervening in, a land use decision, expedited land division or limited land use decision to the Land Use Board of Appeals. If the next scheduled meeting of the commission does not occur or a quorum of the commission is unavailable at the scheduled meeting, the department shall proceed as provided in Section (2) of this rule.

(2) If there is no commission meeting scheduled to occur six or fewer days before the close of the applicable appeal period, or the period for intervention in an appeal, the director may file, or intervene in, the appeal and report the action to the commission and request permission to pursue the appeal, or intervention, at the commission's next scheduled meeting.

Stat. Auth.: ORS 197.040(1)(c)
Stats. Implemented: ORS 184.633 & ORS 197.090
Hist.: LCDD 1-2000, f. & cert. ef. 1-24-00

660-001-0220

Notice

(1) When the director seeks commission approval to file or pursue an appeal, or an intervention in an appeal, of a land use decision, expedited land division or limited land use decision, the department shall provide written notice to the applicant and the affected local government. The notice shall:

(a) Identify the land use decision, expedited land division or limited land use decision at issue;

(b) Give the date and location of the commission meeting at which the director will seek commission approval to file or pursue an appeal, or an intervention in an appeal, of the identified action;

(c) Inform the applicant and affected local government that each may provide written and oral testimony to the commission concerning whether to approve the director's request; and

(d) Include a list of the factors in OAR 660-001-0230(3), on which all testimony and the commission's decision must be based.

(2) The notice shall be mailed or sent by some other means such as fax or e-mail as soon as practicable after the department receives notice of the land use decision, expedited land division or limited land use decision at issue.

Stat. Auth.: ORS 197.040(1)(c)
Stats. Implemented: ORS 184.633 & ORS 197.090
Hist.: LCDD 1-2000, f. & cert. ef. 1-24-00

660-001-0230

Commission Hearing

(1) Only the director, or department staff on the director's behalf, the applicant and the affected local government may submit written or oral testimony concerning whether the commission should approve the director's request to file or pursue an appeal, or an intervention in an appeal, of a land use decision, expedited land division or limited land use decision.

(2) Unless the director allows a closer deadline, written testimony must be submitted at least five days before the commission meeting to be provided to commission members in advance of the meeting. Written testimony shall be no more than five pages, including any attachments, and must be received in the Department's Salem office to be "submitted" by the deadline. If the time to submit written testimony under these rules falls on a Saturday, Sunday, or state legal holiday, the time to perform the obligation shall be shortened to the next day preceding that is not a Saturday, Sunday, or state legal holiday.

(3) Written and oral testimony and the commission's decision to approve or deny the director's request shall be based on one, or more, of the following factors:

(a) Whether the case will require interpretation of a statewide planning statute, goal, or rule;

(b) Whether a ruling in the case will serve to clarify state planning law;

(c) Whether the case has important enforcement value;

(d) Whether the case concerns a significant natural, cultural, or economic resource;

(e) Whether the case advances the objectives of the agency's Strategic Plan; or

(f) Whether there is a better way to accomplish the objective of the appeal, such as dispute resolution, enforcement proceedings, or technical assistance.

(4) The Chair shall limit the amount of time each speaker may testify, and shall exclude written or oral testimony not relevant to the factors in OAR 660-001-0230(3).

(5) Unless the Chair establishes a different order, oral testimony will be presented in the following sequence:

(a) Director, and/or department staff;

(b) Applicant;

(c) Affected local government; and

(d) Director, and/or department staff.

(6) No rebuttal or response is permitted, although the commissioners may question the director, department staff, the applicant, and the affected local government regarding the factors during the commission's deliberations.

Stat. Auth.: ORS 197.040(1)(c)
Stats. Implemented: ORS 184.633 & ORS 197.090
Hist.: LCDD 1-2000, f. & cert. ef. 1-24-00

City Annexations -- and Application of Goals within Cities
660-001-0400

Confidentiality and Inadmissibility of Mediation Communications

(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in ORS 192.410 to 192.505.

(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in ORS 36.234.

(4) To the extent mediation communications would otherwise compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Mediations Excluded. Sections (6)–(10) of this rule do not apply to:

(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or, a lawsuit has been filed; or

(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters; or

(c) Mediation in which the only parties are public bodies; or

(d) Mediation involving two or more public bodies and a private party if the laws, rule, or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential; or

(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation.

(6) Disclosures by Mediator. A mediator may not disclose, or be compelled to disclose, mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial, or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c)–(d), (j)–(l), or (o)–(p) of section (9) of this rule.

(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in sections (8)–(9) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial, or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding.

(8) Written Agreement. Section (7) of this rule does not apply to a mediation unless the parties to the mediation agree in writing, as provided in this section, that the mediation communications in the mediation will be confidential and/or nondiscoverable and inadmissible. If the mediator is the employee of and acting on behalf of a state agency, the mediator, or an authorized agency representative must also sign the agreement. The parties' agreement to participate in a confidential mediation must be in substantially the following form. This form may be used separately or incorporated into an "agreement to mediate." [Form not included. See ED. NOTE.]

(9) Exceptions to confidentiality and inadmissibility:

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding;

(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law;

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person;

(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law, or court rule, is not confidential and may be disclosed to the extent necessary to make such a report;

(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged, or otherwise prohibited from disclosure under state or federal law;

(f) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree;

(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties to the mediation;

(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure;

(i) In any proceeding to enforce, modify, or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement;

(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements;

(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial, or arbitration proceeding:

(A) A request for mediation; or

(B) A communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation; or

(C) A final offer submitted by the parties to the mediator pursuant to ORS 243.712; or

(D) A strike notice submitted to the Employment Relations Board.

(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute;

(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:

(A) Attorney-client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege; or

(B) Attorney work product prepared in anticipation of litigation or for trial; or

(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency; or

(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation; or

(E) Settlement concepts or proposals, shared with the mediator or other parties.

(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the Director of the Department of Land Conservation and Development determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law;

(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under ORS 30.402 or state or federal law requires the terms to be confidential;

(p) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(10) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

[ED. NOTE: The form referenced in this rule is(are) not printed in the OAR Compilation. Copies are available from the agency.]

Stat. Auth.: ORS 36.224
Stats. Implemented: ORS 36.224, ORS 36.228, ORS 36.230 & ORS 36.232
Hist.: LCDD 1-1999, f. & cert. ef. 1-6-99

660-001-0410

Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications

(1) This rule applies to workplace interpersonal disputes, which are disputes involving the interpersonal relationships between this agency's employees, officials, or employees and officials. This rule does not apply to disputes involving the negotiation of labor contracts or matters about which a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed.

(2) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(3) Nothing in this rule affects any confidentiality created by other law.

(4) To the extent mediation communications would otherwise compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Disclosures by Mediator. A mediator may not disclose, or be compelled to disclose, mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial, or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c) or (h)–(j) of section (7) of this rule.

(6) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in section (7) of this rule, mediation communications in mediations involving workplace interpersonal disputes are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial, or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced into evidence by the parties or the mediator in any subsequent proceeding so long as:

(a) The parties to the mediation and the agency have agreed in writing to the confidentiality of the mediation; and

(b) The person agreeing to the confidentiality of the mediation on behalf of the agency:

(A) Is neither a party to the dispute nor the mediator; and

(B) Is designated by the agency to authorize confidentiality for the mediation; and

(C) Is at the same or higher level in the agency than any of the parties to the mediation or who is a person with responsibility for human resources or personnel matters in the agency, unless the agency head or member of the governing board is one of the persons involved in the interpersonal dispute, in which case the Governor or the Governor's designee.

(7) Exceptions to confidentiality and inadmissibility:

(a) Any statements, memoranda, work products, documents, and other materials otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding;

(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law;

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person;

(d) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged, or otherwise prohibited from disclosure under state or federal law;

(e) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree;

(f) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure;

(g) In any proceeding to enforce, modify, or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement;

(h) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements;

(i) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute;

(j) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(8) The terms of any agreement arising out of the mediation of a workplace interpersonal dispute are confidential so long as the parties and the agency so agree in writing. Any term of an agreement that requires an expenditure of public funds, other than expenditures of $1,000 or less for employee training, employee counseling, or purchases of equipment that remain the property of the agency, may not be made confidential.

(9) When a mediation is subject to section (6) of this rule, the agency will provide to all parties to the mediation and to the mediator a copy of this rule or an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

Stat. Auth.: ORS 36.224
Stats. Implemented: ORS 36.230(4)
Hist.: LCDD 1-1999, f. & cert. ef. 1-6-99


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